The Army CCA finds no jurisdiction to require public access to documents introduced during an Article 32 preliminary hearing
The Army CCA issued two interesting decisions on petitions for extraordinary relief in the Bergdahl case (complete coverage here). The first decision involves a petition by Sergeant Bergdahl (last discussed here) seeking a writ of mandamus that would permit the public release of the AR 15-6 investigation conducted by Major General Dahl into the circumstances of Sergeant Bergdahl’s capture. The CCA’s decision denying the writ states that:
Although not phrased as such, the relief petitioner seeks is for this court to countermand an order given by a military commander, in a circumstance where there is not yet—and may never be—a court-martial. This would be a broad view of this court’s jurisdiction.
. . .
Viewing [ABC, Inc. v. Powell, 47 M.J. 363 (C.A.A.F. 1997)] in light of [Clinton v. Goldsmith, 526 U.S. 529 (1999)], we reject the invitation to extend the jurisdiction of this court under the All Writs Act to the pre-referral matter raised in this writ.
Bergdahl v. Burke & the United States, No. 20150624, slip op. at 3 (A. Ct. Crim. App. Oct. 8, 2015) (link to slip op.). The CCA also concluded that even if it had jurisdiction, the petition failed to establish any right to relief.
The second decision involves a similar petition from Bergdahl and multiple media organizations, and the CCA again finds that it lacks jurisdiction:
The jurisdiction of this court to issue process under the All Writs Act is limited to issues having “the potential to directly affect the findings and sentence.” LRM v. Kastenberg, 72 M.J. 364, 368 (2013); 28 U.S.C. § 1651. This court does not have jurisdiction to oversee the administration of military justice generally. Clinton v. Goldsmith, 526 U.S. 529, 534 (1999). Petitioner has not demonstrated that the release of documents to the public, prior to any decision on whether this case should be referred to trial, has the potential to directly affect the findings and sentence.
Hearst Newspapers, LLC, et al., & Bergdahl v. Abrams, Burke, Visger & the United States, No. 20150652, slip op. at 2 (A. Ct. Crim. App. Oct. 14, 2015) (link to slip op.).
Writ-appeal petitions of both decisions have been filed at CAAF.